Waitstaff and Servers

Restaurants often deny waitstaff and servers the full tips to which they are entitled.  The Massachusetts rules governing tip pooling and tip splitting are complex.  Generally, restaurants cannot take any of your tips; tip pools can only include servers, bus help and bartenders; and anyone (ever servers) with management responsibility cannot take from the tip pool.

Can the restaurant take a portion of my tips?

No.  The restaurant cannot take any portion of your tips.

Are tip pools among servers allowed?  And who can take money from a tip pool?

Yes.  Tip pooling is allowed.  However, in general, only servers, bus help and bartenders can take part in a tip pool.  Other restaurant workers cannot take money from the tip pool.

Can a manger take money out of a tip pool?

No.  Managers cannot take part in a tip pool – even if the manager also works as a server.  Whether a worker has the title of “manager” does not matter.  If a worker makes or influences decisions regarding scheduling, performs supervision, directs other employees, hires or fires employees, or regularly exercises independent judgment, that person may be considered a manager and cannot take money out of the tip pool.  There is almost always an individual present during a shift who will count as a manger, and cannot take money out of the tip pool.

When must a tip pool be paid out?

Tip pools must be paid at the end of the day or at the next paycheck.

Can my employer pay me less than minimum wage and use my tips to make up the difference?

Yes.  Restaurants can pay a “service rate” of less than the minimum wage.  But in order for a restaurant to do this, you must be customarily tipped, and the service rate and the tip must exceed the minimum wage each week.  But if your tips are through a tip pool, and the tip pool is not properly done, your employer may owe you the full minimum wage.  Additionally, if your employer requires you to do a significant amount of work other than tipped work – such as preparing food – the employer may be required to pay you the full minimum wage.

If you are a server where the restaurant takes a portion of your tips, where a person with any management responsibilities takes from the tip pool, or where you are paid a service rate but required to perform other work, please give us a call or send us an email to discuss your specific situation.